The central test-case226that is used in the literature to examine the various theo- ries regarding justification of private defence is the case of the innocent aggressor.
An example of this is when the aggressor is insane. As was noted in the previous section, the principal use made of the test-case is to negate the theory that the rationale for the justification of private defence stems principally from the aggres- sor’s guilt. As was alluded to above, my opinion is that the aggressor’s guilt has significant importance that goes beyond the function of a mere test-case, since the waiver of the requirement of guilt of the aggressor undermines the very substance of private defence and constitutes a waiver of a substantial part of its uniqueness in comparison to other criminal law defences of compulsion, such as in the fol- lowing aspects: the attack that is performed by the aggressor, his guilt in the attack and directing the defensive force against the guilty aggressor himself.
223A similar opinion is expressed—within the framework of philosophical literature—by Montague: ‘Special moral significance does attach, however, to the fact that a life-threatening situation is created by someone’s culpable behaviour, whether intentional, reckless, or negligent’(Montague (1981), n 211 above, at 211). Apart from my reservations regarding the sufficiency of the negligence that appears at the end of Montague’s words, I agree with what he says.
224See section 1.5.5 below.
225In order to remove all doubt, it should be noted that although the discussion of the theory was carried out—pursuant to the legal literature and the philosophical literature that deals with the same subject—while relating, principally, to lethal defensive force used against a lethal attack, the theory that is based on the aggressor’s guilt is also applicable to cases of more moderate attack and defensive force.
As a rule, it seems that the consideration of lethal defensive force—within the framework of the dis- cussion concerning the rationale for private defence—always constitutes the surmounting of the high- est possible hurdle. In other words, the rationale that justifies lethal defensive force, will also—in the sense of ‘a fortiori’—justify more moderate defensive force. Yet, as noted above, consideration of lethal defensive force and of this alone throughout the entire discussion may distort the picture. Therefore, cases of more moderate force must always be kept in mind. This is especially correct with regard to the next stage—following the determination of the rationale—determining the suitable arrangement for private defence. Such a framework must be adapted not only for lethal defensive force (as many schol- ars tend to do) but also for moderate force.
226It should be mentioned that this is one of the only issues that relates to private defence that is almost always considered by scholars who write about private defence.
The opinion that even repelling an innocent aggressor falls within the bound- aries of the justification of private defence is so deeply rooted, that it is generally accepted among many of those who support the distinction between a justification and an excuse that one of the central implications of this distinction is as follows: while there is no right to private defence against a ‘justified’ attack, it is ‘justified’ to exercise private defence against an attack that is only
‘excused’.227Thus, for example, although the attacked person does not have the right to private defence against a policeman who legally and justifiably arrests him, according to this approach the attacked person does have a right to private defence against the psychotic aggressor, who has no justification for his action and is only excused within the framework of a defence of insanity. This approach is expressed, inter alia,228in the German Penal Code,229in the American Model Penal Code230 and in the proposed new English Penal Code,231 and there are those who view it as the most important implication of the distinction between justification and excuse.232
227 See, eg, Dressler, n 32 above, at 62; and Robinson (1984), n 37 above, vol 1 at 165–67. Fletcher also claimed this, as will be discussed in detail further on. It should be mentioned that Robinson—for some reason—notes, in the above-mentioned pages of his book, that in Fletcher’s opinion a third party is not entitled to assist the defender against an innocent aggressor (see—principally—nn 7 and 8, Robinson (1984) vol 1, n 37 above). Fletcher’s position on this matter is the same as that of Robinson, as Fletcher wrote, inter alia, in the writings to which Robinson referred.
228 The defence of the ‘pursuer’ (‘rodef’) in Jewish law is also valid when the aggressor (the ‘pur- suer’) is a minor—see, eg, Finkelman, n 25 above, at 1279ff. See and compare to D Frimer, ‘The Guiltless Aggressor’ (1986) 34 Or Hamizrach94 (Hebrew). With regard to solutions provided by Jewish law to the problem that is the subject of our present discussion, and whose main discussion may be found regarding the phrase ‘might is right’, see more extensively Enker, n 89 above, at 212–39. Similar opinions, according to which repelling an innocent aggressor is included in the bounds of private defence, were also expressed by the Australian court (see SMH Yeo, ‘New Developments in the Law of Self-Defence in Australia’ (1987) 7 OJLS 489 at 492–493; D Lanham, ‘Death of a Qualified Defense?’ (1988) 104 LQR 239 at 246) and by scholars (see Card, Cross and Jones, n 180, at 625;
Williams, n 13 above, at 733; Williams (1982), n 1 above, at 735; JF Stephen, A Digest of the Criminal Law, 9th edn by LF Sturge (London, 1950) at 254 (see the first example and fn 6, relating to s 305)).
229 Section 32 of the German Penal Code permits private defence against an attack that is ‘wrong- ful’, and an attack in a situation of excuse is indeed ‘wrongful’. See with regard to German law, eg, Fletcher, n 37 above, at 96ff; Mordechai Kremnitzer, ‘On Some Characteristics of German Criminal Law’ in Essays in Honour of Justice Shimon Agranat(1986) (Hebrew) at 330; Gur-Arye, n 37 above, at 79.
230 The definition of ‘unlawful force’, in section 3.11(1) of the MPC, against which private defence is permitted, also includes various cases in which the aggressor is innocent because he has the defence of an excuse. As Fletcher notes (n 37 above, at 96 fn 83), this definition is cumbersome and inefficient, since the drafters did not use the term ‘excuse’.
231 Section 27(3) of the English bill (Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles, no 218 (London, 1993)) defines a criminal act—against which private defence is permitted—with a broad definition that also includes various cases where the aggressor is innocent due to the existence of an excuse. It should be noted that in other contexts the English bill does not distinguish between justification and excuse—see Gur-Arye, n 13 above, at 228.
232 This is, eg, the opinion of Gordon—n 1 above, at 423.
Before we turn to the dispute itself, it should be clarified that with regard to two matters there is almost complete agreement among the scholars. The first—when an aggressor acts within the framework of a ‘justification’, the person attacked is not entitled to ‘justified’ private defence. The second—even those who negate pri- vate defence against an innocent aggressor do not, usually, claim that the attacked person should ‘succumb’ to the aggressor. However, it is definitely possible that the person attacked would be acquitted on the grounds of another criminal law defence, of an excuse type, such as putative defence (if he was unaware of the fac- tual basis of the aggressor’s defence) or ‘necessity’.233Accordingly, even when it is stated that the attacked person who injures the innocent aggressor should be acquitted, the mere fact of the acquittal should not suffice, but it is necessary to continue and explore the basis for this acquittal: the justification of private defence or only an excuse.
Within this discussion, the approach of Fletcher is especially noteworthy, as set forth in his well-known article entitled ‘Proportionality and the Psychotic Aggressor’.234 Because of the large amount of attention that this article has received in international literature on the subject, and because of the significance of the arguments that he presents therein, I shall refer in depth to the basic ideas that he presents there. Fletcher focuses his discussion on the specific case of an aggressor who is innocent due to an excuse—the psychotic aggressor—and he explains this choice by the fact that, in all legal systems, it is clearly acknowledged that insanity constitutes an excuse and not a justification235. In his opinion, it was the treatment of the problem of the psychotic aggressor in German law which led to the negation of the rationale of private defence based on the guilt of the aggres- sor, and to the preference for the rationale based on the autonomy of the person attacked, despite the ‘cost’ of adopting the rationale of autonomy, namely the lack of a requirement of proportionality. In contrast, it is the fact that Anglo-American law ignores the problem of the psychotic aggressor that—in his opinion—enabled reliance on the rationale of the aggressor’s guilt and the requirement of propor- tionality.236
Fletcher uses the case of the psychotic aggressor as a test-case for the examina- tion of the various theories of private defence and ‘necessity’. His basic assump- tion is that, in accordance with our intuition, we should permit defence against an aggressor who acts in a situation of excuse.237First, he negates the possibility that the solution to the problem is to be found within the framework of the ‘necessity’
233It should be noted that the classification of this case as ‘necessity’ and not as private defence has important practical implications, such as: a strong duty to retreat, greater rigidity of the requirement for proportionality and restriction of the right of a third party to intervene.
234See Fletcher (1973), n 1 above. See also his later article, n 9 above.
235See Fletcher (1973), n 1 above, at 371.
236Ibid, at 370 and 390.
237Ibid, at 378.
defence of a justification type (known as the ‘lesser evils’)238, since this pits the life of one person against the life of (one) another.239The option of a ‘necessity’ of the excuse type as the solution to the problem is negated by Fletcher on the basis of the undesirable results that he attributes to such a solution: (1) A third party will be forbidden to intervene to assist the attacked person; (2) The aggressor himself will have the right to self-defence, since the defensive act of the person who is attacked within the framework of an excuse of ‘necessity’ will be considered as a ‘wrongful act’; (3) If force is used by the person who is attacked, a third party will be entitled to intervene to assist the aggressor.240
In my view, the reasoning of Fletcher for the negation of the solution of ‘neces- sity’ as an excuse is not only unconvincing, it is also inaccurate: (1) Although a third party probably241could not intervene with a ‘justified’ intervention to help the person attacked, it could be that he would have an excuse if he intervenes, for example, when the person who is attacked is his relative; (2) It is correct that the aggressor can defend himself against the defensive act of the person attacked, but only within the framework of an excuse, and not as ‘justified’ behaviour; (3) In light of this last clarification (2), Fletcher’s determination that the third party will be particularly entitled to intervene to help the aggressor is unfounded.242
Fletcher concludes his discussion of the ‘necessity’ defence by asserting that this defence—both as a justification and as an excuse—is not a suitable solution to the problem of the psychotic aggressor, since the theory of ‘necessity’ ignores the important feature of this case: the fact that one of the sides in the confrontation attacks, while the other defends himself.243However, as mentioned, the unique-
238 An example of a situation of ‘necessity’ of the justification type: A breaks down the door of his neighbour B’s apartment, to take a bucket full of water in order to extinguish a fire that has broken out in the apartment of another neighbour, C. By doing so he chooses the lesser evil, and society justifies and encourages him to act in such a way. As an example of a situation of ‘necessity’ of the excuse type, it is possible to take the case, which we described above, of two survivors from a sinking ship who try to hold on to a small log that is sufficient to rescue only one of them. If one of them pushes the other to his death and holds on to the log alone in order to save himself, it is possible to understand him and forgive him within the framework of the necessity exception as an excuse, but not as a necessity excep- tion of justification, since he did not choose the lesser evil. His life has no greater importance than the life of another.
239 Fletcher (1973), n 1 above, at 373ff.
240 Ibid.
241 Unless it is such a case as may be included in the bounds of the ‘lesser evil’, although this is only a remote possibility.
242 Although it could be that he will not bear responsibility if he does so, however—once again—
only in the context of an excuse, such as if the aggressor (that has now also become the one attacked) is his relative.
It should be noted that nothing in my above argument should constitute an agreement with Fletcher’s approach and with that of other supporters of this distinction between justification and excuse, according to which the right to defend another is directly, automatically and mechanically derived from the above exception—see Ch 4.2.3 below. However, at this stage and for the purpose of addressing the arguments of Fletcher, I am willing to assume that the above implication is valid.
243 Fletcher (1973), n 1 above, at 376.
ness of private defence in comparison to ‘necessity’ does not derive from the attack alone, but from the attack in conjunction with the aggressor’s guilt. Although the typical case of ‘necessity’ involves the sacrifice of the interest of a third party, and with regard to the issue we are discussing—as in private defence—it involves the sacrifice of the aggressor’s interest,244 in the typical case of private defence the aggressor can cease his attack. This is not the case for the psychotic aggressor in particular, and the aggressor who acts in a situation of excuse in general, since both are unable to control the cessation of the attack, or at least not to the same extent.245Therefore, a criminal law defence of the excuse type (such as ‘necessity’) is actually more suitable for our matter: a defence that will impose limitations upon the attacked person—because of the special situation of the aggressor—such as a strong duty to retreat and a relatively rigid requirement of proportionality.
From this point, Fletcher goes on to examine the suitability of three theories of private defence for the matter under discussion. He negates the suitability of the first—private defence as an excuse—for the solution of the problem of the psy- chotic aggressor, for the principal reason he used to negate the possibility of a
‘necessity’ as an excuse—a third party who chooses of his own free will to inter- vene for the good of the person attacked will not enjoy this defence.246On this point, my opinion is that if indeed there are no circumstances that would provide an excuse for the third party, such as putative defence (if he did not know that the aggressor was innocent), or ‘necessity’ (based on his relation to the person attacked), or justification on the basis of the ‘lesser evil’ (a remote possibility), then there is no reason to encourage him to defend the person who is attacked by injur- ing the innocent aggressor.247
The suitability of the second theory, which bases private defence on the culpa- bility of the aggressor, for the solution of the dilemma of the psychotic aggressor is easily negated by Fletcher by means of a literal definition,248and justly so. Yet the assumption that the solution to this problem is supposed to be found in par- ticular in the areas of private defence is incorrect.
At this juncture, Fletcher, having negated four solutions to the dilemma—as mentioned, at completely different degrees of persuasion—reaches what is, in his
244On the basis of this characteristic it is possible to determine an exception of private defence as an excuse that will co-exist with the principal exception of private defence as a justification. I will relate to this possibility below.
245Although this does not involve a lack of ‘volition’ (lack of control; no objective-physical option to choose alternative behaviour), yet in situations of an excuse the actor’s freedom of choice is extremely restricted.
246Fletcher (1973), n 1 above, at 377.
247Fletcher talks about our strong intuition, according to which the person attacked by a psychotic individual should be allowed to defend himself. He also talks about our intuition that the intervention of a third party to assist the person attacked should be justified (see ibidat 378). Yet the existence of this latter intuition is questionable. See also the text accompanying n 273 below.
248See Fletcher (1973), n 1 above, at 378; and see section 1.5.2 above, which relates in depth to this theory.
opinion,the one and only solution: the theory that bases the justification of pri- vate defence on the autonomy of the person attacked. As he notes, according to this theory, defensive behaviour against the aggressor is indeed included within the framework of private defence.249In the next section I shall refer at length to this last theory and demonstrate that this is not the suitable and desirable rationale for private defence. At this stage, it is sufficient to mention one central deficiency of this rationale—a deficiency that is admitted by Fletcher himself: according to this rationale no proportionality is required between the expected danger to the person attacked if he does not injure the aggressor, and the expected danger to the aggressor if the attacked person injures him (or in another version—the actual injury to the aggressor).250
Further on, we shall see that the demand for proportionality is a central, impor- tant and desirable demand—morally, legally and practically—within the frame- work of any cultural order of private defence251. Given this, Fletcher’s conclusion at the end of his article that Anglo-American law lags behind German law regard- ing this matter, to the extent that it still‘dwells in Plato’s cave’,252seems strange.
Fletcher’s description is as follows: In German law, the dilemma of the psychotic aggressor was addressed, and the rationale of autonomy was accordingly chosen as a solution, creating the problem of the lack of a requirement of proportionality. As opposed to this, in Anglo-American law there was absolutely no consideration given to the dilemma of the psychotic aggressor and therefore, of course, they did not find a solution for it. Even if we accept this description, that in my opinion is imprecise, a clear picture still emerges as follows: according to Fletcher’s theory itself, each of these legal systems has solved only one of the two problems: the German system—the dilemma of the psychotic aggressor, and the Anglo- American system—the problem of proportionality. If so, why praise the system which chose the solution to a rare and marginal problem (defensiveness against an innocent aggressor), and discredit the system that adopted a cultural requirement of the highest order of proportionality—a requirement which has been credited with great importance in all cases of private defence?
As mentioned, the above article by Fletcher gained a great deal of literary atten- tion, and it eventually became acceptable—due to Fletcher, among others—to negate the rationale based on the culpability of the aggressor on the grounds of its incompatibility with the case of the innocent aggressor.253 Fletcher’s article elicited a detailed response from Kremnitzer.254
249 See Fletcher (1973), n 1 above, at 378ff.
250 Ibidat 387ff.
251 See principally Ch 3.8 below.
252 Fletcher (1973), n 1 above, at 390.
253 See, eg, Moore, n 222 above, at 321; Ryan, n 196 above, at 511; Thomson, n 29, at 36; Kadish, n 34 above, at 884.
254 See Kremnitzer, n 10 above.